Everett v. State , No. 26212.

• Docket Nº: No. 26212.
• Citation: 208 Ind. 145, 195 N.E. 77
• Case Date: April 09, 1935
• Court: Supreme Court of Indiana

208 Ind. 145
195 N.E. 77

EVERETT
v.
STATE.

No. 26212.

Supreme Court of Indiana.

April 9, 1935.

Joseph Everett was convicted of first degree murder, and he appeals.

Reversed, with instructions.

[208 Ind. 146]Appeal from Adams Circuit Court; D. B. Erwin, Judge.
H. M. Devoss and C. L. Walters, both of Decatur, for appellant.

Philip Lutz, Jr., of Boonville, and Wm. E. Bussell, of Greenfield, for the State.

TREMAIN, Judge.

The appellant was tried and convicted upon an indictment charging him, in a single count, with murder in the first degree. There was a plea of ‘not guilty’ and self-defense. Judgment was rendered upon the verdict that he be imprisoned for life in the state's prison. His motion for a new trial was overruled, and this ruling is assigned as error. It is shown by the evidence that on the evening of June 29, 1931, the appellant was engaged in baiting a trotline in St. Mary's river on the north side of the town of Pleasant Mills in Adams county; that he was in a boat and carried with him his bait and a small .25-caliber revolver which he carried for the purpose of hunting; that appellant was a bachelor about 54 years of age and did not maintain a home; that at times he resided with relatives and during the summer it appears that he lived along

[195 N.E. 78]

the river and slept on the ground part of the time and at other times slept in a barn near the river; that he attended school 6 or 7 years when a boy and reached the fourth grade; that he worked by the day for farmers and did odd jobs, but it appears that during the fishing season he spent most of his time along the river; that he had resided in that community all his life; that he was never arrested or charged with the commission of any crime until this occasion.

While appellant was engaged in baiting his trotline, and about 7 o'clock in the evening, the decedent, Doras Werling, age 27, and his two brothers-in-law, James Franklin Halberstadt, Jr., age 19, [208 Ind. 147]and Thomas Halberstadt, age 16, together with another young boy, came to the river to go in swimming. At that time the appellant was across the river from these men, a distance of 250 feet; that the small town of Pleasant Mills is on the south side of the river, which at that point runs from the east to the west; that the appellant returned from the north side of the river to the south side near where the decedent and boys were located, and near the building where appellant kept his supplies; that he anchored his boat, and at that time trouble arose between them. The Halberstadt boys testified that they had gone to the river to go in swimming and had thrown a stone into the water to test its depth and that the decedent was sitting on a log some 12 or 15 feet from where the appellant anchored his boat. They testified that the appellant started an argument with them as to why they were swimming in his fishing territory, and they claim that appellant fired one shot at the decedent while he sat upon the log; that after that shot was fired the decedent lunged onto the appellant; that at the same time the Halberstadt boys attacked him, and the three of them were on appellant, who was lying upon his back, when a second shot was fired; that upon the firing of the second shot the decedent fell off appellant and died within a short time, never having spoken a word after he received the injury.

The appellant testified that when he anchored his boat he reached under the seat and got his bait can and revolver to carry them back to a barn which stood a short distance from the river; that decedent and the two Halberstadt boys immediately attacked him; that they knocked him down and beat him until he was almost unconscious; that he had the revolver in his right hand when he was attacked by the decedent and the Halberstadts; that he always held the revolver in his left [208 Ind. 148]hand when firing it; that he did not know how the gun was discharged, because the three men were on him and beating him at the time and his eyes were filled with blood and he could not see; and that he was greatly frightened, and believed that he was in danger of great bodily harm.

It appears that the young boy who accompanied the decedent and the Halberstadt boys immediately ran away when the fight started. However, an eyewitness stood on a hill about 75 feet south of where the fight occurred. He testified that he heard the loud talk, but did not understand all that was said; that he saw appellant anchor his boat and walk along the bank near the decedent and that the decedent and the two Halberstadt boys attacked the appellant and knocked him to the ground; that they were the aggressors; that the three were on the appellant before any shots were fired; that two shots were fired about one-half minute apart; that, when the second shot was fired, he saw the decedent fall off the body of the appellant and that he died without speaking. All the evidence shows that the appellant was severely beaten and bruised about the face and head and that one bullet had entered his right forearm near the wrist and gone out near the elbow; and a bullet passed through the knee of the...